Using External Investigators Lawfully: Licensing, Independence and Procedural Fairness in NSW, WA and Victoria

Independent investigations can be invaluable in reportable conduct matters, but outsourcing does not remove accountability from the head of the organisation. In New South Wales, Western Australia and Victoria, safeguarding leaders need to think about three issues at the outset: whether an external investigator is actually needed, whether licensing rules apply, and whether the investigator’s brief will support a fair, defensible process. If those points are missed early, the organisation can create delay, procedural unfairness and avoidable regulatory scrutiny.

When an external investigator is the right choice

An external investigator is usually worth considering where the matter is serious, sensitive or likely to be contested. Common examples include allegations of sexual misconduct, physical violence, significant emotional or psychological harm, or significant neglect of a child. External appointment may also be appropriate where:

the alleged conduct involves a senior staff member or influential volunteer
internal decision-makers may be perceived as conflicted
the matter is likely to attract regulator, board or community scrutiny
the organisation lacks internal capability to run a trauma-informed and procedurally fair investigation
there are parallel employment, disciplinary or child safety issues requiring careful separation of roles.

Independence matters, but it should not be confused with detachment from the organisation’s obligations. The regulator still expects the organisation to notify within time, oversee the investigation, and reach findings on the civil standard of proof. In reportable conduct matters, that means the balance of probabilities, informed by the Briginshaw principle where allegations are serious. The investigator assists the organisation; they do not replace its statutory responsibilities.

Before briefing externally, it is worth asking whether the issue can be investigated by an internal employee with the right skill set and sufficient independence. Internal employees conducting investigations are generally exempt from private investigator licensing requirements when acting within the scope of their employment. If the organisation has suitable internal capability, that can be lawful and efficient. If not, an external appointment may be the safer course.

Licensing rules in NSW and WA: do not assume any consultant can investigate

In NSW and WA, licensing should be checked before the appointment is made.

In NSW, external investigators generally need a Class 2E (Private Investigator) licence under the Security Industry Act 1997 (NSW). Internal employees are exempt when investigating within the scope of their employment. This distinction is important. A HR consultant, workplace investigator or safeguarding adviser may appear well qualified, but if they are engaged externally to investigate, the organisation should confirm that the required licence is held where the work falls within the licensing regime.

In WA, external investigators must be licensed under the Security and Related Activities (Control) Act 1996. Again, the practical lesson is to verify licensing status before the brief is issued, not after interviews have begun.

A simple procurement or onboarding checklist should require the organisation to confirm:

the investigator’s current licence status where required
experience in child-related and workplace investigations
training in trauma-informed interviewing
understanding of reportable conduct processes and regulator expectations
ability to produce clear, evidence-based findings within statutory timeframes.

Regulators also expect investigators to be appropriately qualified. A common benchmark is Certificate IV in Government Investigations together with practical experience in trauma-informed interviewing. Licensing and competence are not the same thing; both need to be tested.

Briefing for independence without losing control

One of the most common mistakes is giving an external investigator a vague instruction such as “investigate and report”. That can lead to scope drift, confusion about who decides findings, and unfairness to the worker who is the subject of allegations.

A better brief should define:

the allegations or issues to be investigated
the relevant timeframe and key witnesses
whether the task is fact-finding only or includes findings on disputed facts
the documents to be reviewed
how child safety risks will be managed during the investigation
expectations about interview process, recordkeeping and evidence handling
reporting milestones aligned to the applicable reportable conduct deadlines.

In NSW, organisations must manage a mature and fully operational scheme with initial notification within 7 business days and a final report within 30 calendar days. In WA, the initial notification is due within 7 working days and the final report on conclusion. In Victoria, the initial notification is due within 3 days via the SSR secure webform, with the final report due as soon as practicable. Those timelines should shape the investigator’s workplan from day one.

The brief should also be explicit that the organisation retains responsibility for notification, risk management, employment decisions and final reporting to the regulator.

Victoria: tighten instructions on fairness and scope

Victoria warrants particular care. The Victorian scheme now sits with the Social Services Regulator (SSR), and there is a strong emphasis on procedural fairness. Organisations should reflect that emphasis in every external instruction.

Procedural fairness usually requires that the person who is the subject of adverse allegations is told the substance of the allegations, given a genuine opportunity to respond, and assessed by an unbiased decision-maker. An external investigator should therefore be instructed to avoid shortcuts such as:

relying on untested assumptions
asking leading or accusatory questions without putting the substance fairly
expanding the investigation into unrelated conduct without fresh authority
making findings beyond the evidence gathered.

Victorian employers should also be careful about scope because the definition of employee has expanded to include labour-hire workers, secondees, and individual business directors or owners. That means the brief needs to identify all relevant worker categories at the outset. A narrow instruction based on outdated assumptions about who falls within scope can undermine the investigation and create reporting problems.

Practical fairness controls in Victoria include reviewing draft allegations before interview, ensuring the respondent has a meaningful opportunity to respond to adverse material, and separating safeguarding risk decisions from final factual findings where possible. Where children are involved, interview planning should also be sensitive, proportionate and aligned with child-safe practice.

Managing quality, defensibility and regulator confidence

Whether the matter arises in NSW, WA or Victoria, the best external investigations are disciplined, evidence-based and proportionate. The organisation should not treat the investigator as a black box. Active oversight is needed to ensure:

timeframes are being met
the allegations remain clearly defined
procedural fairness steps are documented
interview methods are appropriate and trauma-informed
findings are tied to evidence and the civil standard of proof.

That oversight should not compromise independence. It is about governance, not coaching an outcome. A well-run external investigation helps the organisation demonstrate to the regulator that it took the allegation seriously, used a competent investigator and maintained a fair process throughout.

Key takeaways

Use an external investigator where seriousness, conflict, sensitivity or capability gaps make internal investigation unsuitable.
In NSW, external investigators generally need a Class 2E (Private Investigator) licence; internal employees are exempt within employment scope.
In WA, external investigators must be licensed under the Security and Related Activities (Control) Act 1996.
Check both licensing and investigative competence, including trauma-informed experience and reportable conduct knowledge.
In Victoria, tighten written instructions around procedural fairness, scope control and which worker categories are covered.
External appointment does not transfer the organisation’s reporting and oversight obligations to the investigator.